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What does the Court take into account?

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andrea

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« on: March 08, 2021, 11:28:22 PM »
Hi everyone,
I am considering taking the LL to Court because he did not protected the deposit in time.

Maybe it is a silly question, but I was wondering what the Judge/Court usually takes into account when deciding the amount to give the claimer? Dodgy behaviours? False statements? Delays on carry out repairs?

My situation is: LL wasn't carry out major repairs. LL was sending out the plumber to fix small repairs but the biggest issue, a not fully flushing toilet, took 11 months to be repaired. Another issue with mold. First email with pictures and videos completely ignored, and then never fixed.
Another thing is LL and wife showed up in full lock down without notice. My bad I let them in. Not an apology. Communication was so slow that I had to write all caps "FORMAL COMPLAINT" on the email to have their attentions. So I listed all the things I was not happy with and at that point I mentioned the deposit and they lied saying it was protected. I have proof it wasn't and the certificate clearly state the starting date and on email basically LL admit it wasn't.
Positives are:  LL gave back the deposit without a blink of the eye, and also when he couldn't protect in full the deposit, he gave back the remaining.

Thank you

KTC

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« Reply #1 on: March 08, 2021, 11:51:27 PM »
Quote from: andrea on March 08, 2021, 11:28:22 PM
I am considering taking the LL to Court because he did not protected the deposit in time.

Maybe it is a silly question, but I was wondering what the Judge/Court usually takes into account when deciding the amount to give the claimer?

Cop out, and probably the more strictly correct answer: Anything that's reasonable for the judge to take into account, the judge can take into account.

In practice, behaviour related to the disrepair is unlikely to be taken into account if you're not suing for disrepair. So, only questions related to deposit protection.

While ignorance is no excuse to liability, it can certainly be a factor when discretionary amount is decided. Is the person a landlord with lots of properties, this is their main source of income etc., i.e. how professional are they related to letting? Did they just mess up the prescribed information on a technicality or protected only a few days late, to only protected it months later when tenant asked about it, or maybe never protected at all? If no longer living there, did the landlord return deposit quickly or is the tenant suing because landlord not returned it at all despite having no reason for deductions?

heavykarma

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« Reply #2 on: March 09, 2021, 09:41:39 AM »
I don't understand the bit about the landlord not being  able to protect the full deposit?  How long did he take to protect it?

Inspector

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« Reply #3 on: March 09, 2021, 03:55:19 PM »
My understanding is the amount for the deposit will be reliant on how devious the landlord was.  As he gave back the full deposit he has a defence that he acknowledged his mistake. The courts can still fine more though if they see fit.

Complaints about disrepairs will be separate.  The courts can certainly find in your favour if basic repairs were not done.

Comes down to how far you want to take it but there is no guaranteed outcome.

Hippogriff

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« Reply #4 on: March 09, 2021, 04:20:42 PM »
If a Deposit wasn't protected then there is a guaranteed outcome... in terms of finding in favour... but not in terms of scale of penalty... only the range we're all familiar with.

If a Landlord had clearly not protected the Deposit and the relationship had broken-down and wasn't important to me, then I think I would push on that door. Taking someone to Court needn't be the first step, though. It's fine to make the Landlord aware of the situation they've found themselves in - maybe they are unaware, so you can help them understand, just so there's no doubt... and see if they fancy offering you a settlement without all this unpleasant Court business... in fact, tell them you're open to settlement ideas if you want. It is wise to give everyone a chance... even if you feel you'll end up progressing a Court case in the end.

andrea

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« Reply #5 on: March 09, 2021, 04:45:14 PM »
Quote from: heavykarma on March 09, 2021, 09:41:39 AM
I don't understand the bit about the landlord not being  able to protect the full deposit?  How long did he take to protect it?

Tenancy started in April 2019 and ended April 2020. Deposit protected August 2020. After that contract the tenancy switched to rolling tenancy.
In the meantime, I think June 2020, they have changed the deposit cap.
Basically he protected the deposit as soon as I pointed out that I knew about it. Now I checked again for the month the protection started and it is not there anymore

Now that you make me think about it, does it count as one single tenancy or more?

KTC

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« Reply #6 on: March 09, 2021, 07:19:20 PM »
Depends on your contract. If you had a fixed term tenancy, then the periodic tenancy that arose after by statue is a new tenancy. If your contract stated that the term is from X to Y and then continuing month to month, or words to that effect, then it's one tenancy continuing.

Quote
Now I checked again for the month the protection started and it is not there anymore

Should be in the prescribed information he's given you, assuming he's given you the prescribed information..........?

andrea

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« Reply #7 on: March 09, 2021, 07:47:14 PM »
Quote from: KTC on March 09, 2021, 07:19:20 PM
Depends on your contract. If you had a fixed term tenancy, then the periodic tenancy that arose after by statue is a new tenancy. If your contract stated that the term is from X to Y and then continuing month to month, or words to that effect, then it's one tenancy continuing.

Quote
Now I checked again for the month the protection started and it is not there anymore

Should be in the prescribed information he's given you, assuming he's given you the prescribed information..........?

It says Periodic Tenancy  and then "run month to month" :

Quote
If the Tenant stays on after the end of the fixed term of this Agreement and no new Agreement is issued
then the Tenancy will continue as a “periodic tenancy” and run from month to month. The Tenant shall give
the Landlord at least one month’s notice to coincide with the end of a “period” of their intention to terminate
this Agreement in writing to the Landlord’s address as set at the beginning of this Agreement.

Looks like new tenancy to me..

EDIT
Also https://blog.openrent.co.uk/what-happens-when-a-tenancys-fixed-term-ends/ seems to confirm my Assured Shorthold Tenancy becomes a new tenancy when it ends.
Quote
If the tenancy Is an Assured Shorthold Tenancy, then when the minimum term expires, the tenancy will continue due to statute.
« Last Edit: March 09, 2021, 08:44:48 PM by andrea »

Hippogriff

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« Reply #8 on: March 10, 2021, 11:29:35 AM »
It seems like you're reading things people say exactly backwards, at least to me? Worth re-checking..?

andrea

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« Reply #9 on: March 10, 2021, 11:45:55 AM »
Quote from: Hippogriff on March 10, 2021, 11:29:35 AM
It seems like you're reading things people say exactly backwards, at least to me? Worth re-checking..?

What do you mean?

I think my contract is saying both things that KTC said. that 's why I quoted the contract.
Sounds to me a new tenancy but I am not an expert. I am waiting suggestions from the experts :)

KTC

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« Reply #10 on: March 10, 2021, 12:06:03 PM »
You have a badly drafted contract, but that's a problem that goes against the landlord since ambiguity goes against the party that drafted the contract if it were a here's the terms agree or not rather than negotiated between the parties.

You haven't actually quoted the bit that says along the line of "for a term of 12 months start X/04/2019" or "from X/04/2019 to (X-1)/04/2020" etc.

Based on what has been posted, I think that if challenged in court, it will be considered a fixed term tenancy followed by a statutory periodic tenancy pursuant to section 5 of the Housing Act 1988, legally two tenancies. The quoted text refers to 'will continue as a “periodic tenancy”' but also references 'fixed term' and 'new Agreement' being issued. References to fixed term implies this being a fixed term tenancy.

andrea

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« Reply #11 on: March 10, 2021, 12:20:25 PM »
This is what the contract says about the duration:
Quote
This Agreement is intended to create an Assured Shorthold Tenancy as defined by the Housing Acts.
Dated: 13th March 2019
Landlord(s):
Landlord’s Address:
Under Section 48 of the Landlord and Tenant Act 1987, notices can be served on the Landlord at the above address.
Tenant(s):
(hereinafter called “the Tenant”).
Property: The dwelling known as:
Contents: The fixtures and fittings at the Property together with any other items provided by the landlord.

Term: For the term of 12 months commencing on 13th April 2019
Rent: £1,000.00 (One thousand pounds only) per calendar month
Payment: in advance by equal monthly payments on the 12th of each month.
Deposit: £1,384.00 (One thousand, three hundred, eighty-four pounds only)
(Held by Landlord).

KTC

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« Reply #12 on: March 10, 2021, 12:44:29 PM »
Quote from: andrea on March 10, 2021, 12:20:25 PM
Term: For the term of 12 months commencing on 13th April 2019

That's a fixed term tenancy.

If you remained in occupation as your only or main place of residence, then on 13/04/2020, you started on a statutory periodic tenancy, a new tenancy with effectively the same terms apart from its length.

Two tenancies, means two deposit protection breach, means two penalties of 1-3x, so a range of £2,768 to £8,304. Going back to your original question, I would also expect the judge to take into account whether the penalty is reasonable when considered overall. So while they may award a 3x penalty for the 1st tenancy since deposit was never protected if that was the whole claim, they may reduce it to say 2x for 1st tenancy and then 1x for the 2nd tenancy where the deposit was protected but late and then it was returned whole to tenant.

andrea

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« Reply #13 on: March 10, 2021, 01:03:31 PM »

Thank you very much KTC for clearing that up.
That also explain why the LL offered 1x and tried to close negotiation in a blink of an eye. :)

andrea

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« Reply #14 on: March 11, 2021, 12:49:15 AM »

I finally managed to find mydeposit's scheme rules and they say that a deposit does NOT need to be re-protected in case the AST converts into a periodic tenancy. This confuses me a bit
Can I still negotiate for 2 tenancies breach? If yes how ?

KTC

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« Reply #15 on: March 11, 2021, 10:12:10 AM »
If the landlord had protected the deposit and given the prescribed information during tenancy A, and then tenancy B replaces tenancy A, if when B started the deposit remains protected then the landlord does not need to do anything. If any of those conditions are not true, then the deposit need to be protected again and the prescribed information given again.

Yes, if per your posts that the deposit was never protected during the fixed term, and it was protected after more than 30 days of the SPT, that's two penalties.

andrea

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« Reply #16 on: March 12, 2021, 03:32:02 PM »
Thank you once again KTC.

andrea

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« Reply #17 on: March 16, 2021, 02:23:54 PM »

Update.

I am trying to negotiate with the LL.
Doing a lot of research here and there I am pushing the LL to cooperate without going to court, explaining his liabilities, what kind of penalties his facing (min and max), citing old cases, where I would stand if we go to court etc.
(BTW the information out there about statutory vs contractual periodic tenancies is very confusing)

He insists that the bit of contract I posted above
Quote
If the Tenant stays on after the end of the fixed term of this Agreement and no new Agreement is issued
then the Tenancy will continue as a “periodic tenancy” and run from month to month. The Tenant shall give
the Landlord at least one month’s notice to coincide with the end of a “period” of their intention to terminate
this Agreement in writing to the Landlord’s address as set at the beginning of this Agreement.

is the reason why the periodic tenancy that followed the fixed term contract is a "contractual period tenancy", so he would offer 1.5x to settle.

I am ready to let the court to decide at this point, but wanted to try one last time. I told him we have time till the 20th of this month.
So any suggestion to make it clear without any doubt that my periodic tenancy is a statutory one ?
if any of you wants to read the full contract or read what I wrote him etc. you can reach me privately.

Thank you in advance

KTC

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« Reply #18 on: March 16, 2021, 07:49:03 PM »
The initial tenancy agreement was for a fixed term tenancy because that was the term specified:

Quote from: andrea on March 10, 2021, 12:20:25 PM
Term: For the term of 12 months commencing on 13th April 2019

Quote from: andrea on March 16, 2021, 02:23:54 PM
If the Tenant stays on after the end of the fixed term of this Agreement

And while "Tenancy" obviously has its specific legal meaning, it's not usual for landlord and tenants to refer their entire occupation as one Tenancy when legally they are multiple tenancies. Given a choice between interpreting 'Tenancy will continue as a “periodic tenancy” and run from month to month' as occupation will continue under a month to month statutory periodic tenancy, or what was otherwise explicitly defined as a fixed term of 12 months now suddenly has a repeating term, the SPT arising option must be the more logical interpretation. If there were intention for the tenancy to be contractual periodic from the start, it wouldn't be talking about the possibility of issuing new agreement as that would be totally unnecessary.

Disclaimer: I'm not a lawyer, the court may disagree etc. etc.
« Last Edit: March 16, 2021, 07:50:54 PM by KTC »

andrea

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« Reply #19 on: March 18, 2021, 07:34:48 PM »
Quote from: KTC on March 16, 2021, 07:49:03 PM
If there were intention for the tenancy to be contractual periodic from the start, it wouldn't be talking about the possibility of issuing new agreement as that would be totally unnecessary.

LL is not arguing that the tenancy was contractual periodic from the start, but he is arguing that the fixed term tenancy became a contractual periodic tenancy after AST ended because the contract said so.

Every time I read about periodic tenancy I have more doubt than before.
Can a fixed term AST become a contractual periodic tenancy after it ends?  if yes, does the contract need to explicitly say "contractual" on the clause?
If no, what makes a fixed-term AST evolve into a contractual tenancy?

KTC

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« Reply #20 on: March 18, 2021, 09:48:28 PM »
Let him try that argument in court. A tenancy must either be a fixed term tenancy or a periodic tenancy, it can't go from one to the other.

The maximum length of a tenancy must be known in advanced.

Quote
Term: For the term of 12 months commencing on 13th April 2019

If the Tenant stays on after the end of the fixed term of this Agreement and no new Agreement is issued
then the Tenancy will continue as a “periodic tenancy” and run from month to month. The Tenant shall give
the Landlord at least one month’s notice to coincide with the end of a “period” of their intention to terminate
this Agreement in writing to the Landlord’s address as set at the beginning of this Agreement.

As stated, I would suggest the term would be uncertain if it wasn't a fixed term tenancy. For a periodic tenancy, it survive uncertainty because (subject to any statutory override) each party has the power to terminate through notice at the end of any period, after a possible minimum term, and the length of each period is known in advance. Here, the landlord cannot know the length of the tenancy as it is subject to whether the tenant stays on or not.

Anyway, the landlord have made you an offer, doesn't seems likely to increase with further back and forth, you need to decide whether you're going to accept the offer, or goes to court.

andrea

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« Reply #21 on: March 19, 2021, 03:41:09 PM »
Quote from: KTC on March 18, 2021, 09:48:28 PM
A tenancy must either be a fixed term tenancy or a periodic tenancy, it can't go from one to the other.

This is what I wanted to hear.
Also this is what is not clear from the thousands of resources I have read so far about the topic.
The fact that they say that if there is a clause on the contract the fixed-term tenancy once it ends becomes a contractual periodic tenancy is misleading. Is this a thing they do to trick people that are not familiar with the law?

Quote from: KTC on March 18, 2021, 09:48:28 PM
Anyway, the landlord have made you an offer, doesn't seems likely to increase with further back and forth, you need to decide whether you're going to accept the offer, or goes to court.
I just want to understand how this works to be honest. If you have any resource BTW I happy to read more about the topic.
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